How the rot set in

“To keep any great nation up to a high standard of civilization there must be enough superior characters to hold the balance of power, but the very moment the balance of power gets into the hands of second-rate men and women, a decline of that nation is inevitable.”
― Christian D. Larson

Police Injury Pensions: Maladministration or Criminality?

A Call for an Independent Enquiry.

This paper is intended primarily for former UK police officers and their families, serving officers and perhaps also any HR managers with responsibility for administration of police injury pensions who might have a conscience.

It is a call for an independent enquiry into the causes and consequences of the recent unlawful administration of police injury pensions, which started in 2004, eased to (nearly) a halt in 2010, and is now showing signs of having evolved, like a super-bug and is again threatening injury pensions.

It asks if the maladministration became criminal, with offences committed against Section 4 of the Fraud Act – fraud by abuse of position. It is motivated by a desire to see justice done and the guilty named and shamed so that disabled former officers and their families can finally draw a line under the issue.

There is no statutory definition of maladministration, but it is described by the Local Government Ombudsman as including but not confined to:

delay

incorrect action or failure to take any action

failure to follow procedures or the law

failure to provide information

inadequate record-keeping

failure to investigate

failure to reply

misleading or inaccurate statements

inadequate liaison

inadequate consultation

broken promises

There are numerous ‘watchdog’ organisations that provide a conduit for complaints of maladministration and a means of resolution and redress, usually when other attempts have failed. The Pensions Ombudsman has dealt with numerous complaints from former officers and it it worth noting that it is not necessary for consequential injustice to be alleged.

There is no fixed definition of injustice but it can consist of:

financial loss or unnecessary expense;

hurt feelings, distress, worry, or inconvenience;

loss of right or amenity; and

time and trouble in pursuing a justified complaint.

Thus, injustice may well have been present in all the cases where former officers in receipt of an injury pension were caused inconvenience, distress, worry or even suffered hurt feelings due to maladministration. I am sure we would all agree pensioners have had to take considerable time and trouble in pursuing their forces and police authorities over the maladministration of injury pensions and many have suffered adverse financial consequences.

To date, it seems clear that most IOD pensioners would have no difficulty agreeing that there has been widespread maladministration and injustice. However, it may well be that we should now consider if the actions and, just as importantly, the inaction of forces, police authorities and certain individuals went beyond maladministration and stepped over a line into criminal behaviour.

There is plentiful information available online about the background to the recent difficulties surrounding police injury pensions, so it is not the intention here to go too much over old ground, but rather to propose a course of action that will help the healing process and help ensure future good administration of injury pensions.

It is also time that those who were responsible for visiting such widespread distress were made to face the consequences of their appalling behaviour. It seems to be a modern attitude which pervades the police service that nobody is ever to blame and nobody need ever take responsibility for failings. An apology is seen as a sign of weakness which may have adverse effects on one’s career. The truth is, it takes strength of character to apologise.

Over the last few years we have witnessed, or been subjected to, maladministration resulting in dramatic and damaging reduction in the amount of injury pension paid. Disabled former officers, and their nearest and dearest have been dragged into an intensely stressful nightmare and have been forced to make strenuous efforts to protect their rights, and have incurred expense in so doing. Family relationships have been strained and quality of life diminished.

It has been a long, slow and painful process, but decisions in the High Court and determinations by the Pensions Ombudsman have finally had the effect of forcing pension administrators to refund money unlawfully taken, and to restore pensions to their proper former level. However, there is no way of knowing for sure that every disabled former officer has had matters put right.

It should be noted that in no instance did any force nor any police authority voluntarily take steps to put matters right. However, the saga is not yet over and the priority now must be to ensure that pensions are never again subject to similar maladministration.

Whilst this fiasco ran its lengthy course some of our colleagues have died whilst waiting for a resolution. Confidence in Chief Officers, HR managers, police authorities and SMPs has been shattered. There needs to be a healing process, bringing with it a restoration of confidence. Injury pensioners need to know they will be treated with dignity and respect and any future review of their pension will be conducted with scrupulous attention to the requirements of the Regulations. Serving officers, who at any time might be propelled suddenly into the ranks of retired, disabled, and on a pension, need to know that they too will be protected by the lawful administration of the Regulations.

Anyone reading this who is aware of the wide-ranging attack on the pensions granted to police officers injured in the line of duty must surely have thought, ‘But how could this happen?’ A good question, and one to which we have some part of the answer, but not yet the full picture. For that we need a comprehensive independent investigation.

It seemed, looking back over the last few years that a sort of collective madness had seized those in charge of the administration of police injury pensions. Some 17 forces, together with their police authorities, made a choice to abandon common sense and the Regulations and to follow guidance issued by the Home Office: guidance which said It was a good idea to reduce all injury pensions to the lowest possible level when pensioners reached the age of 65. The guidance also proposed the use of a device (ASHE) at normal force retirement age that would reduce pensions at that point. We know that the Home Office guidance, issued in August 2004 in the form an Annex C to HO circular 46/2004 was the trigger. The target was to reduce pension payments made to disabled former officers. So, who are those who fired the gun?

They are everyone who either actively took up the HO guidance or stood idly by, neglected their professional duty and allowed what has been dubbed the great pension robbery to take place. They are those who issued the guidance, and those who gave it tacit or specific approval. The people with prime responsibility must be Chief Constables, who are expected to prevent and detect crime and who held delegated responsibility from the now defunct police authorities for the lawful administration of injury pensions. Also responsible are senior HR managers, who would be expected to advise the Chief Constable and, as qualified professionals, understand the requirements of the Regulations.

Now Police Pension Authorities (in most forces, the Chief Constable) have taken over statutory responsibility for decisions over whether and when reviews might take place. We have to wonder if that was a sensible move, as it means the very individual whose budget stands to benefit should injury pensions be reduced by calculated manipulations of the Regulations is empowered to make decisions which make difficult demands on his impartiality.

The SMP, who acts in an independent statutory quasi-judicial role is expected to understand the Regulations and not to take instructions on what decisions he should come to. Yet there is worrying evidence that some SMPs have been and remain all too ready to be ‘guided’ or ‘advised’ by HR managers, and others, who should have no part in his independent decision-making role.

Depending on the local situation, other people may also have played a part in the historic maladministration, especially where they would be expected to ensure correct procedures or warn of deficiencies in process. And here I sadly have to include dormant Federation reps and local branches of NARPO where ignorance of the Regulations was never allowed to interfere with coach trips and golf tournaments.

If any one of these people had hacked into your bank account and set up a standing order to divert thousands of pounds a year into their own accounts, they would, quite rightly, face being arrested and charged and could expect severe penalties. Yet, not one person seems to have been disciplined, admonished, or given even a mild ticking off. Nobody has lost their job, though one or two have ‘retired’ or moved on elsewhere.

We have no indication that pension administrators have been given extra training, or that better systems of supervision and oversight have been put in place. There seems to be no change in the fundamental deficiencies that allowed the maladministration to run unchecked for so long. There seems to be little or no change in attitude, with pensioners still seen as an expensive drain on resources rather than as honoured former colleagues.

We are led to believe that it was all just a simple, understandable and forgiveable slight error of administrative process. We are asked to believe that people were doing what they thought was the right thing at the time.

Hogwash!

To me, and I suspect, to many other injury pensioners, this does not seem like justice. Yes, we have had our pensions restored, and yes, some forces have apologised, but until the guilty are brought to justice and required to account for their behaviour there can be no hope of reconciliation and no removal of the nagging concern that it could all happen again.

You see, I think it entirely possible that what we were forced to undergo was not plain vanilla maladministration. That alone would be bad enough, but I believe there may also have been criminality. Injury pensioners, and their representatives, should be looking at the evidence and making firm demands for an independent enquiry under the supervision of the Police Complaints Commission and Crown Prosecution Service.

A constant theme running throughout the difficulties has been suspicion by the pensioners, and denials by the administrators, that a desire to save money lay at the heart of things. We have, however, seen documents where calculations were made, working out how much money might be saved, or spent, in conducting reviews of injury pensions. To its credit, National NARPO made public its opinion that the desire to save money was the driving force behind the HO guidance being implemented.

Indeed, the potential savings must have looked very inviting to the bean counters who whisper in the ears of Chief Constables. Perhaps sufficiently inviting to cause some people to decide to break the law. How tempting must it have been to read in guidance from the Home Office that ‘Authorities may wish to consider using the lowest banding for injury awards from age 60 because of the expectation of lower earnings from this age.’ How easy to then persuade Chief Officers that the guidance must be right.

When I was very small, my mother told me, ‘If someone told you it was fine to stick your hand in a bucket of boiling water, would you believe them?’ This was a lesson not learned by many HR managers. Did they bother to read the Regulations to see whether this revolutionary advice had any support from the legislation?

On the 18th May 2004, a date which should go down in infamy, a date which was but a few short weeks before the unlawful HO circular 46/2004 was issued, Mr Giffard, then Chief Constable of Staffordshire, writing on behalf of the Association of Chief Police Officers told the Home Office,

‘We continue to think that at that stage [age 65 years] anybody in receipt of an injury award should be automatically dropped to the lowest band, or possibly even completely dropped . . .’

How could such a senior officer, representing all the members of ACPO, make a statement that essentially was a call to others to break the law?

It could be argued that from the moment HO circular 46/2004 was published, back in August 2004, alarm bells should have sounded. It was so obviously proposing actions that nobody had previously taken that it must have caused honest folk to doubt the lawfulness of following its advice We have proof that this is what must have happened in the majority of forces, for only 17 or so out of the 43 forces in England and Wales implemented the guidance. Those forces which rejected the guidance did so, we would like to think, for good reason. Yet other forces did not take this majority rejection of the Home Office guidance as an indication that they ought to consider why.

From that date it was soon made obvious that many misgivings were being aired not least from NARPO and the Federation at national level, but also from individuals. Again, an honest person would have revisited the issue in the light of those misgivings. Nevertheless, some 17 forces set about implementing the guidance and began a ‘more robust’ approach to reviews, with some forces setting out to review all injury pensioners, and others targeting those aged 65 and over as the best, fastest, way of reducing pension payments.

It began to look like the Home Office’s cunning plan to reduce the ‘burden’ of injury pension payments had stalled. Instead of a sweeping victory and home in time for Christmas Mr Gilbert’s little piece of paper was seen by some as worthless and by others as a licence to print money.

On Wednesday the 4th November 2009 the Rt. Hon. Sir Alan Beith, MP for Berwick upon Tweed

Mr Prime Minister, is the government aware that several police authorities, including Northumbria, are using Home Office guidance as a basis for cutting the pensions of police officers who have been forced to retire early when they have been seriously injured on duty, and on the principle that we should stand by those who have risked their lives and face serious injury protecting us, whether in the armed forces or in the police, will you take a personal interest in this and investigate this?

The Prime Minister replied:

I shall obviously look at this matter. When policemen or women retire they receive the pension. I see no reason why their pension entitlement should be broken, if it is indeed an entitlement, and I shall look at what he says.

Reviews nevertheless continued. By now, an alert and honest Chief Constable, HR manager, CEO or Chair of a Police Authority, any ethical SMP or honest force solicitor, would have perhaps decided that a close look at the Regulations vis a vis the HO guidance would be in order. Perhaps they might have also felt that a quick bit of research into any relevant case law and a phone call to the Pensions Ombudsman might be a sensible move to make if maladministration were to be avoided.

If anyone had bothered to do so, they would have found the Administrative Court case of Crocker. If nothing so far had shaken their confidence in the rightness of the HO guidance, this case should have rattled it into fragments. It was heard in the High Court in December 2003: that is eight months before the Home Office guidance was issued. The case is a complex one, but two passages would leap out to any professional, such as a Chief Constable, or a member of a police authority with law degree, an alert SMP or an honest force solicitor:

The task, in my judgment, in assessing earning capacity is to assess what the interested party is capable of doing and thus capable of earning. It is not a labour market assessment, or an assessment of whether somebody would actually pay him to do what he is capable of doing, whether or not in competition with other workers. I consider that what has to be disregarded is every factor which has affected the loss of earning capacity other than the duty injury.

Reading that, and noting that the whole underpinning for the HO guidance was the assumption that every injury pensioner would experience a total loss of earning capacity merely because he or she had reached the age of 65, any honest person would have wondered how the HO could have issued such guidance. Reviews nevertheless continued. Nobody though fit to act to suspend reviews until the situation was clarified. Inaction is itself capable of causing maladministration. When a person or a body has a statutory duty to safeguard the financial rights of others, then inaction becomes criminal.

Research into Annex C of HO circular 46/2004 showed that its author had been ‘economical with the truth.’ It was claimed in the guidance that a ‘recent survey’ had shown that there was ‘diverse‘ practice when former officers reached normal force retirement age. It stated a ‘recentsurvey‘ had found that, ‘Some forces automatically reduced degree of disablement benefits to the lowest banding when this age had been reached – others continued to pay benefits at the same rate until the death of the Officer concerned.’

This was a complete lie. There had been no survey. The Home Office was eventually brought to admit this, and to reveal that nothing more than one or more non-minuted discussions had taken place at meetings of the National Attendance management Forum.

The facts differed diametrically from the Home Office version of the situation. From 1987 to 2003 not a single injury pension was ever reduced as a result of the former officer attaining either normal force retirement age or state retirement age of 65, contrary to the claims of the Home Office.

The research findings were therefore compelling. They caught the Home Office out in a lie, and acting in an underhand and manipulative manner, and should have caused anyone in a position of responsibility for the administration of injury pensions to consider whether or not the guidance could be relied upon and whether the advice it offered was lawful or not.

The research was presented to the Home Office, which made no comment and made no move to attempt to challenge any of the findings of the research. Nor did the Home Office move to amend or withdraw the guidance: a stance it maintained until the relevant parts of the guidance were declared unlawful by the High Court in 2012.

The research was also presented to numerous Chief Constables, police authorities and others. It was posted on the Internet for public consumption. Not a single voice raised any challenge to the research findings. And not a single force or police authority made any move to revisit their approach to reviews of injury pensions. Unlawful reviews continued.

One Chief Constable, now thankfully retired, was reported as writing that the Home Office guidance was ‘mandatory‘. She must have known that not to be the case. Her explanation, when asked why then were so many forces not actioning the guidance, was that they were breaking the law!

Readers of this blog, and those who take an interest in police injury pension maladministration will be familiar with the High Court cases that began to question the legality of the way some forces were administering police injury pensions – all of which found in favour of the pensioners.

The first of these were Pollard, in February 2009 followed by Turner, in July 2009. In August 2009, the Pensions Ombudsman made a determination in the case of Ayre, that, ‘. . .the Guidance cannot override the relevant Regulations.’

He also made it clear that at age 65 any assessment of degree of disablement could not assume there had been a total loss of earning capacity. Unlawful reviews nevertheless continued.

On the 11th September 2009 the then Minister of State for Security, Counter-Terrorism, Crime and Policing, David Hanson, announced at the annual conference of NARPO that he had ordered a review of the guidance. The promised revision never materialised and unlawful reviews continued.

A Police Medical Appeal Board, one of many that had resulted from implementation of the HO guidance, was convened in January 2010. This was a seminal hearing, chaired by Dr David Wallington, one time Director of Occupational Health for the Metropolitan Police. He concluded:

‘The Board, in recognising the Police Authority’s case in respect of the Home Office Guidance and the Guidance to Police Medical Appeal Boards, nevertheless consider that they have no alternative but to observe the Police Benefit Regulations [sic] where there is no mention of such an argument as cogency, or indeed no specific mention of degree of disablement after age 65. There is no mention in the Regulations that a review of degree of disablement at any time requires an alternative methodology.’

The Police Medical Appeal Boards were effectively giving due notice to all concerned that they recognised the Home Office guidance was flawed. Unlawful reviews nevertheless continued.

On the 12th of November 2009 former Metropolitan Police officer Belinda Laws won her case in the High Court. It clearly signalled that forces had better clean up the way they handled injury pensions.

Towards the end of 2009 several forces unilaterally suspended reviews.

Thus, after five years and numerous lost opportunities to take corrective action, finally some forces realised they ought to act. Too little, too late. The suspension of reviews was not accompanied with a restitution of unlawfully reduced pensions, nor an apology, nor a review of procedures.

On the 10th of March 2010 the Home Office wrote to all forces advising that reviews be suspended, as yet another court case was pending.

At this point one would have anticipated that all forces who had been caught up in the enthusiasm for implementation of the HO guidance would have realised the time had come for them to commence a complete rethink. Instead, they remained as though transfixed, apparently waiting for some direction from the Home Office. There was no reason to wait for any further guidance or advice from that source as everything necessary to bring about a return to a lawful administration of police injury pensions was readily available in the form of the Regulations, recent case law and Pension Ombudsman determinations. Reviews ceased, but disabled officers and their families, continued to suffer uncertainty and anxiety. Those pensioners whose payments had been reduced did not have them reinstated.

On the 13th October 2010 the Metropolitan Police Authority appealed against the Belinda Laws decision, and lost.

Nothing much happened throughout 2011.Forces and police authorities remained largely inactive on injury pension issues but there was then a rash of forces making provision for pensions to be repaid and restored to previous levels.

The case of Crudace was decided in January 2012. His Honour Judge Behrens released a judgement quashing the decision of the Northumbria police to reduce Mr Crudace’s pension when the former Inspector reached the age of 65. He decided the Home Office guidance was unlawful because it was inconsistent with the statutory scheme under which the pensions were paid. Judge Behrens also confirmed former police officers who have had their pensions reduced in this way were entitled to apply to the police authority for the decisions to be reversed and for their pensions to be restored.

This was shortly followed by the case of Simpson in February 2012, which also declared that parts of the HO guidance was unlawful.

The situation now is confusing for some injury pensioners. Most have had their pensions restored to previous levels but none, save in one force, have witnessed any movement by their Chief Constable to consider how injury pensions will be administered in future. This is not good enough, for it does not inspire confidence that further attacks on pension payments won’t be made. Indeed, in Avon and Somerset an ill-thought out attack has begun.

Mr Gilbert has graciously retired, but in a Kafkaesque twist, the force solicitor and the SMP for Northumbria, who were actively responsible for the unlawful ‘reviews’ and consequent reduction of the injury pensions of some 60 disabled former officers which featured in the case of Crudace, now are reinvented and appear as the experts responsible for a training event for some SMPs at the College of Policing.

The time line above is only a brief outline of the major events. Locally, former officers will know of other events that all chart the progress of the maladministration, highlighting intervals where needs to be weighed against Section 4 of the Fraud Act, where any person who occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person

‘. . . may be regarded as having abused his position even though his conduct consisted of an omission rather than an act.’

Pensioners will no doubt have, or can obtain, letters, emails and records of conversations, minutes of meetings and other documents that provide the fine detail of evidence of inaction. Did people in positions of responsibility omit to voice concerns, or respond to your concerns? Did they fail to act, when action was called for? Pensioners might care to consider if there is evidence of dishonesty and fit their local evidence into the wider picture.

The questions to be asked are, ‘Why did my force or police authority not act sooner to suspend reviews and restore pensions?’ and ‘Why did nobody in a position of responsibility not question the lawfulness of what was going on? A further question, to be asked with the combined voices of all the injury pensioners and their families is, ‘How did this happen?’

These questions deserve answers, and I believe they should be sought by an independent investigation by a body supervised by the Independent Police Complaints Commission and the Crown Prosecution Service.

Pensioners might therefore see it as their duty to ask locally for such an enquiry. We were all sworn officers once and could not stand idly by whilst a crime was being committed, nor fail to take action if a crime was complained of.

Two such requests have been made, in Cambridgeshire and in West Yorkshire. Both have fallen on deaf ears. What Chief Constable willingly would agree to expose his or her force to such scrutiny, knowing that there are so many skeletons hidden in so many closets? One Chief Constable was so bold as to claim that a barrister’s advice was that nobody responsible for police injury pensions was in any position to be held liable for section 4 fraud.

It is readily anticipated that a local enquiry would have to very quickly extend to investigating the role of the Home Office, the National Attendance Management Forum, the SMPs and the limited companies providing SMP services, and also the Association of Chief Police Officers. The purpose of the enquiry would be to determine to what extent, if any, maladministration spilled over into criminality. If widespread calls for enquiries are made, then perhaps the need for a national enquiry would become obvious and irresistible. Only when pensioners can be assured that the stables have been cleaned and that no-one remains who is still secretly wishing to find future ways of subverting the Regulations and visiting misery on disabled former officers and their families can we begin to feel confident in those who administer our pensions

.Write, if you feel it the proper thing to do, to your Chief Constable, with a copy to your Police and Crime Commissioner. Ask for an independent enquiry. Briefly explain that you have concerns there may have been criminal offences committed. Quote Section 4 of the Fraud Act. Explain that implementing the HO guidance when it was so obvious to you and many others that it was unlawful, failing to engage in consultation before implementing the HO guidance, failure to act to suspend reviews when there was so much controversy, failing to respond to the decisions in the High Court and by the Pensions Ombudsman, are all failures to act which all seem to indicate fraud by abuse of position. You don’t need to provide all the evidence, for all that is needed is to raise the concern that there may have been offences. Uncovering the evidence would the job of the enquiry.

Under too many carpets there is the dust of misdeeds. In too many seats of power sit too many straw Chief Officers. Second-raters to a man and woman, who are pale shadows, more politician than police officer and who prefer past misdeeds to remain buried in fear that, revealed, they might bury them.